Citation Nr: 1529099
Decision Date: 07/08/15 Archive Date: 07/15/15
DOCKET NO. 12-11 679 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to a compensable disability rating for hepatitis B.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Kenneth L. LaVan, Attorney
ATTORNEY FOR THE BOARD
Steve Ginski, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Navy from July 1977 to July 1981 and from November 1983 to May 1994.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In his May 2012 VA Form 9, Substantive Appeal, the Veteran requested a Board hearing to be held at the RO. In a June 2014 correspondence, the RO notified the Veteran that a Board hearing was scheduled for a date in July 2014. Shortly after the date of this letter, the Veteran, through his representative, submitted a request that the scheduled hearing be cancelled. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(e) (2014).
FINDINGS OF FACT
1. The Veteran failed, without good cause, to report for a scheduled VA examination in conjunction with his claim for an increased disability rating for hepatitis B.
2. Resolving reasonable doubt in the Veteran's favor, currently diagnosed tinnitus had its onset in service.
CONCLUSIONS OF LAW
1. Entitlement to an increased disability rating for hepatitis B is denied on the basis of failure to report for a VA examination. 38 C.F.R. § 3.655(b) (2014).
2. The criteria for service connection for tinnitus have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014). VA provided adequate notice in letters sent to the Veteran in July and September 2009.
Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service and VA treatment records, and associated these records with the claims file. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159 (2014), and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim.
A review of the record reflects that the AOJ scheduled the Veteran for VA examinations in January 2010 and April 2012, which the Veteran did not attend.
II. Failure to Report for a VA Examination
Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b) (2014).
VA dispatched an April 2012 letter to the Veteran informing him that his local VA medical facility would be scheduling an examination for his claim. In a subsequent April 2012 notation, VA noted that the Veteran failed to report for his scheduled April 14, 2012 examination. An April 25, 2012 SOC was issued that denied the Veteran's claim for an increased rating based on his failure to attend his VA examination. The Board finds that the Veteran has not shown good cause for his failure to report for the April 2012 examination. See 38 C.F.R. § 3.655. A claimant is responsible for cooperating with VA in the development of his claim. 38 U.S.C.A. § 5107(a); Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000).
As the Veteran failed to report for an examination scheduled for his claim for an increased rating for hepatitis B, and he has not shown good cause for failing to appear, his claim must be denied.
The criteria for a denial based on application of 38 C.F.R. § 3.655 have been met regarding the claim for an increased evaluation for hepatitis B, and the claim must be denied pursuant to the operative regulation. 38 C.F.R. § 3.655(b) (2014).
III. Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Tinnitus is defined as a noise in the ear, such as ringing, buzzing, roaring, or clicking, that is usually subjective in type. See Dorland's Illustrated Medical Dictionary 1956 (31st ed. 2007). The Board notes that because of the inherently subjective nature of tinnitus, it is readily capable of even lay diagnosis. See Charles v. Principi, 16 Vet. App. 370 (2014).
At the outset, the Board finds that the Veteran was exposed to acoustic trauma while in the military. His DD Form 214, Certificate of Release or Discharge from Active Duty, evidences exposure to acoustic trauma in-service while working as a maintenance welder. Additionally, the Veteran has credibly identified exposure to grinders, chipping metal, high power equipment, gunfire, hammering, motors, and other noises particular to his in-service occupation. Thus, the Board concedes his exposure to noise in service. 38 U.S.C.A. § 1154(a) (West 2014).
Next, after a thorough review of the record, the Board finds that the evidence is at least in equipoise on the question of whether tinnitus was directly incurred in service. In his claim, the Veteran detailed that his tinnitus had onset during service. In a July 2010 audiology consultation at the VA medical center, the Veteran provided that he had experienced recurrent constant bilateral tinnitus constantly since service. The Veteran described his tinnitus as constant ringing in both ears and difficulty hearing the radio or television. The attending audiologist diagnosed the Veteran with tinnitus after giving a Tinnitus Handicap Inventory. The Board notes that tinnitus is a condition capable of lay observation and diagnosis. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). The Veteran has competently and credibly asserted that he has experienced tinnitus symptomatology bilaterally since service. Because the Veteran is competent to identify when his tinnitus began, and its history, his nexus opinion is also competent evidence and probative of a nexus between his current tinnitus and service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).
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Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that tinnitus had its onset in service, and direct service connection for tinnitus is warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
Entitlement to an increased disability rating for hepatitis B is denied.
Entitlement to service connection for tinnitus is granted.
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JAMES G. REINHART
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs